Citation Nr: 9908727
Decision Date: 03/30/99 Archive Date: 04/06/99
DOCKET NO. 96-13 733A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to an increased (compensable) rating for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Massachusetts Department of
Veterans Service
ATTORNEY FOR THE BOARD
Todd R. Vollmers, Associate Counsel
INTRODUCTION
The veteran had active service from February 1951 to February
1954.
This case came before the Board of Veterans' Appeals (Board)
on appeal from a decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Boston, Massachusetts,
in July 1995 that denied the claimed benefits.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the RO.
2. Bilateral hearing loss is manifested by Level II hearing
in the right ear and Level I hearing in the left ear.
CONCLUSION OF LAW
Bilateral hearing loss is not compensable, according to the
schedular criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991 and
Supp. 1998); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, and Part 4,
Code 6110 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran's service medical records indicate that the
enlistment examination in February 1951 assessed his hearing
as 15/15 whispered voice in the right and left ears. A
treatment record from December 1951 states that the veteran
had chronic otitis media in the left ear that was inactive at
that time, with a possible cholesteatoma. A perforation in
the left tympanic membrane was also noted. Another record,
from January 1952, states that the veteran did not have any
discharge from his ear at that time, but that he should be
relieved from field duty when there was a discharge from his
ear. The veteran's separation examination in February 1954
noted chronic otitis media in the left ear, and the veteran's
report that he "had polblonnia removed from his ears." The
veteran's hearing was assessed as 15/15 whispered voice in
the right and left ears, and 15/15 spoken voice in the right
and left ears.
A private audiological test conducted in July 1994 reported
the veteran's pure tone thresholds, in decibels, as follows:
HERTZ
1000
2000
3000
4000
Average
RIGHT
30
20
85
85
55
LEFT
35
25
40
45
37
No speech audiometry data were associated with the July 1994
private examination.
In May 1995 the RO received a copy of the July 1994
audiological test, along with earlier tests conducted by the
veteran's employer, and his statement that even with a
hearing aid he had an extremely difficult time discriminating
speech in normal conversation.
A subsequent VA audiological examination in July 1995
recorded the veteran's report of having been exposed to rifle
range fire and power tool noise in service, as well as noise
exposure as a fisherman since service. The examination found
the veteran's right ear pure tone thresholds, in decibels, to
be 25, 25, 20, 80 and 90 with an average reported as 54.
Thresholds in the left ear were 25, 20, 20 and 40 with the
average being reported as 26. Speech audiometry revealed
speech recognition ability of 90 percent in the right ear and
of 96 percent in the left ear.
In statements included in the record, the veteran contends
that his hearing has steadily deteriorated since he left
military service. The veteran has also stated that normal
conversation is extremely difficult for him, that he must
turn up the radio and television in order to hear it, and
that his hearing loss has affected his ability to do his job.
Analysis
A claimant seeking benefits under a law administered by the
Secretary of the VA shall have the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded. The
Secretary has the duty to assist a claimant in developing
facts pertinent to the claim if the claim is considered to be
well grounded. 38 U.S.C.A. § 5107(a). In this case, the
claim is considered to be well grounded. Moreover, it
appears that VA has complied with its duty to assist the
veteran in the development of his claim.
In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can
practicably be determined, the average impairment of earning
capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such
evaluations involve consideration of the level of impairment
of the veteran's ability to engage in ordinary activities, to
include employment. 38 C.F.R. § 4.10. Where there is a
question as to which of two evaluations should be applied,
the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for
that rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (1995).
Although regulations require that, in evaluating a given
disability, that disability be viewed in relation to its
whole-recorded history, 38 C.F.R. §§ 4.1, 4.2, the present
level of disability is of primary concern. Francisco v.
Brown, 7 Vet. App. 55 (1994). In evaluating the veteran's
claim, all regulations which are potentially applicable
through assertions and issues raised in the record have been
considered, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
Modern pure tone audiometry testing and speech audiometry
utilized in VA audiological clinics are well adapted to
evaluate the degree of hearing impairment accurately.
Methods are standardized so that the performance of each
person can be compared to a standard of normal hearing, and
ratings are assigned based on that standard. The assigned
evaluation is determined by mechanically applying the rating
criteria to certified test results. Lendenmann v. Principi,
3 Vet. App. 345 (1992).
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per
second. To evaluate the degree of disability from bilateral
service-connected defective hearing, VA's rating schedule
establishes 11 auditory acuity levels designated from Level I
for essentially normal acuity through Level XI for profound
deafness. 38 C.F.R. § 4.85, Diagnostic Codes 6100 to 6110.
A zero percent rating is assigned for bilateral defective
hearing where the pure tone threshold average in one ear is
54 decibels, with speech recognition ability of 90 percent
correct (Level II) and, in the other ear, the pure tone
threshold average is 27 decibels with speech recognition
ability of 96 percent correct (Level I). 38 C.F.R. § 4.85,
Diagnostic Code 6100.
The most recent audiological examination for the veteran was
in July 1995, which reported results consistent with an
earlier private examination in July 1994. Using the
appropriate thresholds from the July 1995 examination for
1000 through 4000 Hertz, as well as the speech discrimination
scores listed above, the veteran's hearing is assessed as
Level II in the right ear and Level I in the left ear, which
warrants a noncompensable rating under 38 C.F.R. § 4.85, Code
6100. Therefore, the evidence does not support a schedular
evaluation greater than the noncompensable rating currently
assigned by the RO.
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied.
38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49
(1990). In this case, the Board finds that the preponderance
of the evidence is against the veteran's claim. Therefore,
the Board concludes that an evaluation greater than the
currently assigned noncompensable rating for the veteran's
bilateral hearing loss is not warranted at this time.
ORDER
Entitlement to an increased (compensable) rating for the
veteran's service connected bilateral hearing loss is denied.
C. W. Symanski
Member, Board of Veterans' Appeals
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